HENRY DIAZ, Plaintiff, Appellant, v. CITY OF SOMERVILLE, Defendant, Appellee.
No. 22-1137
United States Court of Appeals For the First Circuit
February 1, 2023
Hon. Jennifer C. Boal, U.S. Magistrate Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Before Barron, Chief Judge, Selya and Kayatta, Circuit Judges.
James J. Heggie on brief for appellant.
Leonard H. Kesten, Michael Stefanilo, Jr., Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP on brief for appellee.
SELYA,
I
We draw the relevant facts from the summary judgment record, construing all
In the early morning hours of June 30, 2017, Diaz (an off-duty Somerville police officer) was driving through East Boston when he was forced to stop because a pedestrian stepped in front of his car. A confrontation ensued, during which Diaz got out of his car and repeatedly punched the pedestrian before driving away. The pedestrian reported the incident to the authorities in East Boston but did not appear at the subsequent hearing on the matter. As a result, the case was dismissed without prejudice.
The Somerville Police Department was apprised of the incident and conducted its own internal investigation. During this investigation, Diaz maintained that he had merely defended himself out of fear for his own safety. Withal, the East Boston police report, a video of the incident, and witness interviews suggested otherwise. The Somerville Police Department investigation concluded that Diaz had been the aggressor and that the incident manifested conduct unbecoming an officer. That investigation also concluded that Diaz had not been truthful during the course of the probe. And after reviewing the report of the investigation, the City‘s police chief recommended disciplinary action up to and including dismissal.
In November of 2017, the City held a hearing to review the police department‘s findings and to present a disciplinary recommendation to the mayor. Diaz was given notice of the hearing and was represented by counsel. After considering evidence presented by both the police department and Diaz, the hearing officer concurred with the police department‘s findings and determined that just cause existed to terminate Diaz‘s employment. The mayor adopted the findings of the hearing officer and fired Diaz.
Diaz appealed the termination of his employment to the Massachusetts Civil Service Commission (the Commission). See
The Commission proceeded to consider whether those violations justified the City‘s decision to terminate Diaz‘s employment. Diaz argued that he, as a Black Hispanic officer, had been disciplined more severely than officers of other races who had committed similar, or worse, infractions. The Commission found, however, that the proffered comparators were distinguishable because the misconduct in those cases “was not as serious,” the comparators themselves were “no longer employed as police officers,” and/or those matters had been resolved through settlements.
The Commission went on to consider other potentially mitigating circumstances, including Diaz‘s previously unblemished disciplinary record and its own preference for progressive discipline. Even after taking those matters into account, though, the Commission concluded that “the seriousness of the misconduct here, which includes pummeling a private citizen who was not posing a physical threat to Mr. Diaz, and then lying about the reasons for this misconduct, warrant termination.” The Commission issued its final decision on April 11, 2019, upholding the termination of Diaz‘s employment as a police officer.
But even while the Commission‘s proceedings were still in progress, Diaz charted a parallel course. Just before the Commission‘s final hearing, he lodged a charge of discrimination with the Massachusetts Commission Against Discrimination (the MCAD). See
The district court held that, for purposes of Diaz‘s chapter 151B claim, the Commission‘s unappealed decision precluded Diaz from relitigating the issues of whether the City had a legitimate reason for terminating his employment and whether he had been subject to disparate treatment. And although the Title VII claim was not precluded by the Commission‘s decision, the district court determined that the comparators submitted by Diaz were insufficient to show that the City‘s stated reasons for termination were pretextual.
Based upon these rulings, the district court granted the City‘s motion for summary judgment. This timely appeal followed.
II
We review a district court‘s entry of summary judgment de novo. See Faiella v. Fed. Nat‘l Mortg. Ass‘n, 928 F.3d 141, 145 (1st Cir. 2019). “In the course of that review, we take the facts in the light most hospitable to the nonmovant . . . and draw all reasonable inferences therefrom to that party‘s behoof.” Gen. Hosp. Corp. v. Esoterix Genetic Lab‘ys, LLC, 16 F.4th 304, 308 (1st Cir. 2021).
With this standard as our guide, we turn to Diaz‘s claims. We start with his state-law claim and then address his federal claim.
A
Diaz‘s state-law claim is a disparate-treatment claim under
As is true in federal cases, the first step of the framework requires the plaintiff to establish a prima facie case by
So long as the employer makes this modest second-step showing, the burden reverts to the plaintiff. At this final step, the Massachusetts approach diverges from the classic McDonnell Douglas framework. Massachusetts is a “pretext only jurisdiction,” where a plaintiff “need only present evidence from which a reasonable jury could infer that ‘the [employer‘s] facially proper reasons given for its action against [him] were not the real reasons‘” in order to survive summary judgment. Theidon v. Harvard Univ., 948 F.3d 477, 505 (1st Cir. 2020) (first alteration in original) (quoting Bulwer, 46 N.E.3d at 33). Thus, even though a plaintiff pressing a Title VII claim must at a minimum present evidence of animus — which may be done by demonstrating that the employer‘s stated reason for the adverse action is so “unworthy of credence” as to suggest animus, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) — a plaintiff pressing a chapter 151B claim need only present evidence that could create the inference that the employer‘s stated reason for the adverse action is not the real reason.3 And that showing can be made by “demonstrat[ing] that similarly situated . . . employees were
treated differently.” Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d 1303, 1309-10 (Mass. 1997).
1
In the case at hand, the district court supportably determined — and the parties do not contest — that Diaz stated a prima facie case of discrimination. The court went no further with respect to Diaz‘s chapter 151B claim because it concluded that the Commission‘s findings precluded Diaz from relitigating the issues of whether the City articulated a legitimate, nondiscriminatory justification for terminating his employment and whether he had been treated disparately in comparison to other similarly situated officers. Testing this conclusion requires us to weigh the preclusive effect, if any, of the Commission‘s findings.4
“[W]hen a state agency ‘acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,’ . . . federal courts must give the agency‘s factfinding the same preclusive effect to which it would be entitled in the State‘s courts.” Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)); see Baez-Cruz v. Mun. of Comerio, 140 F.3d 24, 28 (1st Cir. 1998).
Consequently, we must look to Massachusetts law to determine what preclusive effect, if any, the Commission‘s decision has on Diaz‘s state-law claim. See Baez-Cruz, 140 F.3d at 28-29.
Under Massachusetts law, a previously litigated issue is precluded when
“(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication,” was essential to the earlier judgment, and was actually litigated in the prior action.
Degiacomo v. City of Quincy, 63 N.E.3d 365, 369 (Mass. 2016) (quoting Kobrin v. Bd. of Registration in Med., 832 N.E.2d 628, 634 (Mass. 2005)). If those conditions are satisfied, “[a] final order of an administrative agency in an adjudicatory proceeding, not appealed from and as to which the appeal period has expired, precludes relitigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction.” Stowe v. Bologna, 610 N.E.2d 961, 963 (Mass. 1993) (alteration in original) (quoting Stowe v. Bologna, 592 N.E.2d 764, 766 (Mass. App. Ct. 1992)); see Alba v. Raytheon Co., 809 N.E.2d 516, 521-22 (Mass. 2004) (holding that issue preclusion estopped plaintiff from relitigating issues in chapter 151B claim
that were previously determined in unappealed administrative proceeding).
Diaz does not gainsay that the Commission‘s decision was a final adjudication on the merits and that he was a party to that proceeding. Nor does he dispute that the Commission‘s determination that he failed to identify comparators of sufficient similarity to show disparate treatment was actually litigated and was essential to the Commission‘s judgment. Instead, he asserts that the issue of disparate treatment raised before the Commission was not identical to the issue of disparate treatment presented to the district court through his chapter 151B claim. The difference, he says, is that the Commission was determining whether just cause existed for his firing, whereas the district court was being asked to adjudicate his claim of discrimination.
For present purposes, that is a distinction without a difference. Just as the City bore the burden of persuasion on the chapter 151B claim throughout the course of the modified McDonnell Douglas framework, so too it bore the burden of persuasion before the Commission. Massachusetts Ass‘n of Minority L. Enf‘t Officers v. Abban, 748 N.E.2d 455, 461 (Mass. 2001). And the issue of whether Diaz had been treated differently than other similarly situated officers was essential to, and precisely the same in, both proceedings. The Commission examined the comparators offered by Diaz and determined that they failed to show that he had been
subjected to harsher discipline than others similarly situated because the proposed comparators were different in material respects. By offering comparators as his sole evidence of pretext, Diaz sought to relitigate that very same issue before the district court. The overlap between the issue of disparate treatment raised before the Commission and the issue of disparate treatment raised before the district court was “so substantial that preclusion [was] plainly appropriate.” Comm‘r of Dep‘t of Emp‘t & Training v. Dugan, 697 N.E.2d 533, 537 (Mass. 1998).
Diaz has another blade in his scabbard. He contends that he should not
2
Diaz next assays a broader argument. He submits that the Commission lacked jurisdiction to adjudicate his
discrimination claim because he filed an MCAD complaint before the Commission issued its final decision. The filing of the complaint, he reasons, afforded the MCAD exclusive jurisdiction over his discrimination claim. In support, he cites
But there is a rub. At no time did Diaz either raise this issue before the Commission or challenge the Commission‘s jurisdiction through an appeal in state court. Nor did Diaz advance this argument, face up and squarely, in the court below. Indeed, at oral argument on the motion for summary judgment in that court, Diaz‘s counsel stated that although the Commission typically abstains from addressing issues of racial discrimination, “they have jurisdiction where they could [address those issues].” Under these circumstances, we hold that the
argument has been waived.5 See Teamsters, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (“[L]egal theories not raised squarely in the lower court cannot be broached for the first time on appeal.“).
3
That ends this aspect of the matter. We hold — as did the district court — that Diaz was precluded from relitigating, within the context of his chapter 151B claim, the issue of whether he had received disparate treatment compared to other similarly situated officers. Because Diaz does not contend that he demonstrated pretext in some manner other than by offering comparators,
B
This brings us to Diaz‘s federal disparate-treatment claim. Under Title VII, it is unlawful for an employer “to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual‘s race, color, religion, sex, or national origin.”
The district court determined that Diaz stated a prima facie case and that the City articulated a legitimate, nondiscriminatory justification for terminating his employment. For summary judgment purposes, then, Diaz‘s Title VII claim turns on whether he has made out a genuine issue of material fact regarding the third step of the framework: whether the City‘s stated reason for firing Diaz was pretextual and, in fact, motivated by some discriminatory animus. Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995).
Once again, Diaz attempts to prove pretext by showing “that others similarly situated to him in all relevant respects were treated differently by” the City. Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999).
Unlike Diaz‘s state-law claim, though, his Title VII claim is not precluded by the Commission‘s unreviewed conclusions regarding comparator evidence. State administrative proceedings, not judicially reviewed, do not have preclusive effect with regard to Title VII claims. See Univ. of Tenn., 478 U.S. at 796. Thus, we train the lens of our inquiry on the proffered comparators.
When evaluating such comparators, “[r]easonableness is the touchstone: while the plaintiff‘s case and the comparison cases that he advances need not be perfect replicas, they must closely resemble one another in respect to relevant facts and circumstances.” Conward, 171 F.3d at 20. As we have said,
[t]he test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer‘s art of distinguishing cases, the “relevant aspects” are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared with apples.
Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled on other grounds by Educadores Puertorriqueños En Acción v. Hernández, 367 F.3d 61, 64, 66-67 (1st Cir. 2004).
The district court determined that the comparators offered by Diaz were not sufficiently similar to show pretext
because the comparator incidents did not involve officers found both to have committed violent assaults and to have dissembled during the ensuing investigations. See Diaz v. City of Somerville, 583 F. Supp. 3d 296, 312 (D. Mass. 2022). Diaz assigns error and points to several comparator-officers
We do not agree. The egregiousness of Diaz‘s conduct and the City‘s stated reasons for his dismissal hinged on the combined force of both his assaultive conduct and his subsequent prevarication.6 In other words, it was the combustible mixture of unrestrained aggression and unmitigated mendacity that separated this case from Diaz‘s proffered comparators. Removing an important ingredient of that mixture (say, untruthfulness about what happened or the presence of violence) renders any proposed comparison inappropriate. For a comparison to be apt, “apples
should be compared with apples.” Dartmouth Rev., 889 F.2d at 19. Diaz, however, invites us to compare apples with apricots. Consequently, the district court did not err in determining that proposed comparators lacking both the elements of aggression and mendacity were not similarly situated and, thus, that Diaz‘s proposed comparators were insufficient to ground a finding that the City‘s reasons for terminating him were pretextual.7
The absence of any evidence of pretext is fatal to Diaz‘s Title VII claim. See Conward, 171 F.3d at 22. Accordingly, we uphold the district court‘s entry of summary judgment on that claim.
III
We need go no further. For the reasons elucidated above, the judgment of the district court is
Affirmed.